When did Arkansas's automatic increase in the charter-school cap take effect?

Arkansas AG Opinion 2013-084: Charter School Cap Timing

Plain-English summary

Opinion 2013-084 concluded that an automatic increase in Arkansas's cap on open-enrollment public charter schools took effect at the beginning of the next application cycle, not midway through the current cycle.

"After reading the statute together as a whole, I conclude that the General Assembly intended for the increase to occur at the beginning of the next application cycle."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

The AG reasoned that the annual memorandum announcing the number of charters available during the next cycle would lose its function if the cap could change during that same cycle. The statute's amendment history also linked the floating cap to a school year and yearly application process.

"If the number of charters could increase during that application cycle, then the memo would neither guide the Department nor assist those who are considering whether to apply."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

"the fact that the floating cap and Commissioner’s memo were created within the context of language related to a ‘school year’ further indicates that any increase in the cap would only take effect during the next yearly application cycle."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What was the charter-school cap when the opinion was issued?

The opinion said subsection 6-23-304(c)(1)(A) then capped open-enrollment public charter schools at 24.

"Currently, subsection 6-23-304(c)(1)(A) caps at 24 the number of open-enrollment public charter schools."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

What triggered an automatic increase?

The quoted statute provided that when the available-charter cap came within two charters of an existing limit, the number of available charters would increase by five slots over the most recent cap.

"If the cap on the number of charters available for an open-enrollment public charter school is within two (2) charters of meeting any existing limitation or cap on available open-enrollment charters, the number of available charters shall automatically increase by five (5) slots more than the most recent existing limitation or cap on open-enrollment charters."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Did "automatically" mean immediately?

No. The opinion said automatic meant no additional legislative or other action was required, but the statute did not say the cap increased immediately.

"Thus, the cap’s increase occurs without any further action by the legislature or anyone else. It is important to notice, however, that the statute does not say the cap will ‘immediately increase.’"
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Why did the annual memorandum matter?

The Commissioner had to announce the existing limit and the number available in the next application cycle. That structure contemplated a fixed number at the start of each cycle.

"The phrase ‘the number of charters available ... during the next application cycle’ clearly contemplates that at the beginning of an application cycle, there will be a limitation on the number of charters that could be granted."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

What did the earlier law use instead of a floating cap?

The opinion described the 1999-to-2010 system as a hard cap that could be increased only by legislative action. It said the legislature created the floating cap and annual memorandum in 2011.

"Between 1999 and 2010, there was what we could call a ‘hard cap’ on the number of charters: while the maximum number of possible charters varied, there was no provision for the cap’s increase. Any increase in the cap required legislative action."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Background and statutory framework

A.C.A. § 6-23-304(c) governed the cap and required the Commissioner to issue a March 1 memorandum stating both the existing limit and the number of charters available in the next application cycle.

"This subsection requires you, as the Commissioner, to issue, on March 1 of each year, a ‘memo stating the existing limitations on the number of charters available for open-enrollment public charter schools and the number of charters available for open-enrollment public charter schools during the next application cycle.’"
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

The opinion applied the rule that a statute must be read as a whole and, if possible, so that no word or provision becomes superfluous.

"The statute must be read as a whole. No single word or phrase should be read in isolation from the surrounding words, phrases, and subparts."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Holding

The automatic increase applied at the start of the next application cycle.

"the most reasonable interpretation of section 6-23-304(c)(1)(B) is that the legislature intended for any increase in the cap to occur at the beginning of the next application cycle."
Source: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Citations and references

Statutes discussed by Opinion 2013-084:

• "A.C.A. § 6-23-304(c)" Official opinions search
• "A.C.A. § 6-23-301(a)(1)" Official opinions search
• "A.C.A. § 6-23-304(c)(1)(B)" Official opinions search
• "A.C.A. § 6-23-304(c)(1)(C)" Official opinions search
• "Act 509 of 2013" Official opinions search

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THe ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2013-084

October 1, 2013

Dr. Tom W. Kimbrell, Commissioner
Arkansas Department of Education
Four Capitol Mall

Little Rock, Arkansas 72201-1019

Dear Dr. Kimbrell:

You have asked for my opinion on A.C.A. § 6-23-304(c), which establishes the
rules for the cap on the number of charter schools and the cap’s automatic
increase. This subsection requires you, as the Commissioner, to issue, on March 1
of each year, a “memo stating the existing limitations on the number of charters
available for open-enrollment public charter schools and the number of charters
available for open-enrollment public charter schools during the next application
cycle.”

Currently, subsection 6-23-304(c)(1)(A) caps at 24 the number of open-enrollment
public charter schools. I will refer to this as a “floating cap” because the next
subsection in this statute sets the conditions for the cap to automatically increase.
You report that there are differing views about when, precisely, this increase
occurs. Some say that when the conditions have been met, the automatic increase
occurs at the start of the next application cycle. Others say that the automatic
increase would go into effect immediately, thereby increasing the number of
charters available during the current application cycle.

With this background in mind, you ask the following question, which I have
paraphrased,

If the conditions are met for the cap’s automatic increase, does that
increase occur during the current application cycle, or does it occur
at the beginning of the next application cycle?

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Dr. Tom W. Kimbrell, Commissioner
Arkansas Department of Education
Opinion No. 2013-084

Page 2

RESPONSE

After reading the statute together as a whole, I conclude that the General Assembly
intended for the increase to occur at the beginning of the next application cycle.
The alternative interpretation is, in my opinion, inconsistent with both statute’s
immediate context and its amendatory history.

DISCUSSION

Your question is one of statutory interpretation, the main goal of which is to give
effect to the legislature’s intent. The first step to achieving that goal is to examine
the ordinary meaning of the statute’s wording. The statute must be read as a whole.
No single word or phrase should be read in isolation from the surrounding words,
phrases, and subparts. If possible that reading must be done in such a way that no
word or phrase is left superfluous. If this reading indicates that the statute is
ambiguous—which occurs when the statute is open to two or more plausible
readings—we resort to the rules of statutory construction. Under these rules, we
assess, among other things, the statute’s amendatory history, language, and subject
matter.

Before applying the foregoing to section 6-23-304, it will be helpful to situate the
statute in the wider context of the application cycle for open-enrollment public
charter schools. We will then be able to examine the precise wording of subsection
6-23-304(c)(1)(B). Finally, we will see that when subsection 6-23-304(c)(1)(B) is
interpreted in the context of its immediately surrounding subparts and the general
application cycle, the most reasonable view is that the automatic increase goes into
effect at the beginning of the next application cycle.

Let us first situate the cap and its automatic increase within the context of the
general application process. The legislature requires the Department of Education
to develop the “form, schedule, and procedure that must be used to apply for a
charter.”” In late summer or early fall, applicants start the application process with

| E.g., DaimlerChrysler Corp. v. Smelser, 375 Atk. 216, 222, 289 S.W.3d 466, 472 (2008)
(internal citations omitted).

? A.C.A. § 6-23-301(a)(1) (Supp. 2011), as amended by Act 509 of 2013. As amended, the statute
actually says that “the authorizer” must set establish the form, schedule, and procedure. For
purposes of this opinion, however, the meaning and application of this term is not relevant.

Dr. Tom W. Kimbrell, Commissioner
Arkansas Department of Education
Opinion No. 2013-084

Page 3

the Department by filing a letter of intent. Later, a group seeking a charter must
hold public hearings to assess the interest in a charter school. And if it wants to
continue the process, the group files a formal application and follows the other
steps in the process. In October and November, decisions are made about the
award of charters.’

The General Assembly has established a limit to the number of charters that can be
awarded:

If the cap on the number of charters available for an open-enrollment
public charter school is within two (2) charters of meeting any
existing limitation or cap on available open-enrollment charters, the
number of available charters shall automatically increase by five (5)
slots more than the most recent existing limitation or cap on open-
enrollment charters.’

The adverb “automatically” is derived from the adjective “automatic,” which
primarily refers to something “[a]cting or operating in a manner essentially
independent of external influence or control.’ Thus, the cap’s increase occurs
without any further action by the legislature or anyone else. It is important to
notice, however, that the statute does not say the cap will “immediately increase,”
which would have to be the view of those persons who interpret this subsection as
immediately increasing the number of available charters. In fact, nothing in this
subsection speaks to the time at which the automatic increase becomes effective.
To address that issue, one must examine the surrounding context.

When subsection -304(c)(1)(B) is read in context, it becomes clear that the
legislature did not intend the cap to increase during a given application cycle, for
to conclude otherwise would render another provision superfluous.

The exact timing, which various from year to year, can be found on the website of the Arkansas
Department of Education.

“ A.C.A. § 6-23-304(c)(1)(B) (Supp. 2011), as amended by Act 509 of 2013 (emphasis added).

° American Heritage Dictionary, http://www.ahdictionary.com/word/search.htm|?q=automatic
(Aug. 30, 2013).

Dr. Tom W. Kimbrell, Commissioner
Arkansas Department of Education
Opinion No. 2013-084

Page 4

Subsection -304(c)(1)(C) requires the Commissioner to issue, on March | of every
year, a “memo stating the existing limitation on the number of charters available
for open-enrollment public charter schools and the number of charters available ...
during the next application cycle.”® The phrase “the number of charters available
... during the next application cycle” clearly contemplates that at the beginning of
an application cycle, there will be a limitation on the number of charters that could
be granted. If the number of charters could increase during that application cycle,
then the memo would neither guide the Department nor assist those who are
considering whether to apply. Thus, the view that the automatic increase takes
place immediately renders superfluous the provision about announcing the number
of charters available “during the next application cycle.”

Therefore, in my opinion, the most reasonable interpretation of section 6-23-
304(c)(1)(B) is that the legislature intended for any increase in the cap to occur at
the beginning of the next application cycle.

This conclusion is further bolstered by a quick review of the statute’s amendatory
history. Between 1999 and 2010, there was what we could call a “hard cap” on the
number of charters: while the maximum number of possible charters varied, there
was no provision for the cap’s increase. Any increase in the cap required
legislative action. But in 2011, the legislature turned the hard cap into a floating
cap and created the requirement of the Commissioner’s memo. Those two
changes, which are still in force today, were prefaced by the following:
“Beginning with the 2011-2012 school year, the state board may grant no more
than a total of twenty-four (24) charters....”” (Emphasis added.) In my opinion, the
fact that the floating cap and Commissioner’s memo were created within the
context of language related to a “school year” further indicates that any increase in
the cap would only take effect during the next yearly application cycle.

In conclusion, I believe it was the legislature’s intent that the cap automatically
increase at the beginning of the next application cycle. The statute’s context and
amendatory history clearly indicate such an intent. Further, the alternative view is
untenable because it is not supported by the plain meaning of “automatically,” and
the view renders superfluous at least one other provision.

° A.C.A. § 6-23-304(c)(1)(C) (emphasis added).

Dr. Tom W. Kimbrell, Commissioner
Arkansas Department of Education
Opinion No. 2013-084

Page 5

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby
approve.

Sincerely,

DUSTIN MCDANIEL
Attorney General

DM/RO:cyh